Fairness in Ferguson

The grand jury system is corrupt, and the Darren Wilson case shows how to fix it.

Protesters call for prosecutor Robert McCulloch to withdraw from the investigation into the shooting death of Michael Brown, by Officer Darren Wilson, on Oct. 10, 2014. Facing anger from all sides, McCulloch punted—which in this case is a good thing.

Photo by Scott Olson/Getty Images

It is a well-worn maxim that hard cases make bad law, and there is little doubt that the case of Darren Wilson, now pending before a St. Louis County grand jury, is a very hard case—racially charged, evidentiarily complex, and involving alleged criminality by a police officer. The confluence of these three factors has created an almost impossible dilemma for prosecutor Robert McCulloch. That’s because no matter what the grand jury decides, a lot of people are going to be very unhappy. To shield himself from the unpopular consequences of the grand jury’s decision, McCulloch has done something quite unusual—abdicated the controlling role prosecutors usually play in presenting evidence to grand juries. Ultimately, whether Officer Wilson is indicted or not, McCulloch’s decision to throw open the grand jury’s doors to all the relevant evidence should cause us to reconsider the current relationship between prosecutors and their grand juries.

Charging cops with crimes has always been a tricky business. That’s because a raft of state and federal laws, as well as union rules and department regulations, conspire to afford law enforcement officers with due process protections ordinary citizens can only dream of. Moreover, the politics of prosecuting police are deeply fraught for district attorneys who rely on cops to obtain the convictions that win the DA elections. Prosecutors know full well that one of the things police officers hate most is watching (even their guilty) brethren put on trial or, in the very unusual case, hauled off to jail. Given all this, it’s no surprise that cops get every break imaginable in the criminal justice system. Still, even among the special considerations generally afforded cops charged with crimes, McCulloch’s decision to entirely open up the grand jury process is rare.

Historically, grand juries were viewed, as Judge Learned Hand observed, as the “voice of the community” acting not as an extension of the government but as a shield against it. They were originally designed to guard against malicious, onerous, and hasty public prosecutions. But over the years, thanks to power-hungry prosecutors and an overburdened criminal justice system, that historical role has been eroded to the point of nonexistence. What was once a great bulwark against the oppressive use of the government’s power to prosecute became an organ of the very agencies it was meant to curtail. In contemporary America, prosecutors exercise so much control over grand juries that a district attorney can get a grand jury to (as Sol Wachtler, the former chief judge of the New York Court of Appeals, famously put it) “indict a ham sandwich.”

Here’s how grand juries work today: A prosecutor acting as the jury’s “legal adviser” presents “evidence” against a defendant whom prosecutors want to indict. (Or, in the case of an accused police officer, a defendant they’re not particularly eager to indict.) That “evidence” is carefully crafted to provide as little information as possible. That’s because grand jury testimony must be turned over if a case goes to trial, and as every assistant DA knows, the fewer prior statements defense attorneys have to work with, the less likely they’ll be to undermine the credibility of a witness. Moreover, since grand juries meet in secret, and the prosecutor is entirely in control of access (walking in uninvited will get one arrested), defendants and defense lawyers have little or no place in the process. It is entirely a one-sided show where the decisions are a foregone conclusion.

It is precisely because grand jury outcomes are almost perfectly reflective of what prosecutors want them to be that McCulloch has such a problem on his hands. If the grand jury hearing the case against Wilson indicts him, there will be a hue and cry from the police force and others who will protest vigorously that a noble constable has been sacrificed for political expediency. But, if there is “no true bill” and he is not indicted, the enraged citizenry of Ferguson will feel that race and politics trumped justice. In other words, McCulloch is confronted with a situation in which there is no easy way out.

So he punted.

In his Oct. 31 press release, McCulloch explained that while “[n]ormally, homicide cases are heard by the grand jury in a concise manner with one or two investigators summarizing complex medical and scientific evidence, other physical evidence, and the statements of all witnesses,” in this case “all witnesses with any relevant evidence are being summoned to the grand jury to give their sworn testimony.”

In other words, while McCulloch would normally send in a cop or two to briefly outline the evidence and then “ask” the grand jury to indict, in this case he has decided that the grand jury will hear from actual witnesses and weigh actual evidence from both sides before deciding whether or not there is probable cause to believe that Officer Wilson committed a felony.

Of course McCulloch’s decision is an entirely cynical move designed to insulate him from the political fallout of any grand jury decision. But it is also a terrific moment to reflect on what our grand jury system has become and to consider whether it’s time to reform it. After all, shouldn’t all citizens enjoy the same standards of due process we regularly afford police officers? It is really too much to ask that before a citizen is indicted for a felony, we require prosecutors summon all the witnesses with relevant evidence to give sworn testimony?

Certain critics of the process unfolding in Ferguson will decry McCulloch’s cynical abdication of his traditional curatorial function. And there is little doubt that turning over the decision-making entirely to the grand jury says more about the sticky politics of the case than it does about McCulloch’s integrity. Nonetheless, whether wittingly or not, when McCulloch opted to create a system designed to look fair, he may have taken the first steps toward a system that actually is fair. It is high time that we restore some balance to our long-corrupted grand jury system. After all the strife and hand-wringing in Ferguson, let us insist that this hard case make the law, or at least the American grand jury system, just a little bit better.